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Texas Bar- Civ P&E
Terms in this set (92)
How to provide formal notice to D?
To provide D with formal notice of the filing of the lawsuit, P's attorney must request the clerk to issue a citation, and must serve D with both the citation and the petition.
Service of process on a Texas corporation is effected by serving its registered agent, or serving the president or vice president of the corporation.
Assume D receives proper notice regarding the filing of the Lawsuit. What must D do to avoid the entry of a default judgment against it?
To avoid default judgment, D must file an answer to the petition by 10:00 a.m. on the first Monday following 20 days from the date of service of process.
How and when should a D raise the issue of improper venue?
By 10 a.m. on the first Monday following 20 days from service, by separate written motion before filing an answer or included in its answer before any other pleading or motion, D may file a motion to transfer venue, accompanied by supporting affidavits stating the legal and factual basis for the request and the county of proper venue.
If D timely files motion to transfer venue, how should court respond and how should P respond?
P should assert that venue is proper in Jim Wens County because at least a substantial part of the events that gave rise to the action took place there, D will not suffer hardship from defending against a suit there, and the balance of interests weighs in favor of the case proceeding there. The court will deny the motion to transfer venue.
Ex: P files case in X county. D then files suit in Y count. What should P do to avoid litigating both cases and how should judge rule on this?
must file a plea in abatement raising defects in a pleading that are not readily apparent from the face of the pleading and that prevent the case from going forward in its present state, such as the fact that a related case is pending in another court. Here, the Y County judge should grant the plea, and the YCounty case should be abated
Identify five forms of discovery permissible under the Texas Rules of Civil Procedure.
Five permissible forms of discovery include: requests for admission, disclosure, and for production or inspection of documents or tangible things; requests and motions for entry upon and examination of real property; interrogatories to a party; oral or written depositions; and motions for mental or physical examinations.
P sends D request for production. How should D respond?
D must serve a written response within 30 days after it receives service of the production request, responding to the request or stating objections, privileges, or that the documents cannot be located upon a diligent search. Unless a proper objection is made, it must present copies of the requested documents
If P is not satisfied with D's response to the request for production, how should P raise this issue with the court?
P's attorney can either move for an order compelling compliance with the discovery request or apply for the imposition of sanctions, including attorney's fees, without first obtaining a court order compelling the discovery.
How/When to apply for "Special Exception"
- appropriate when petition does not set out the amount of damages
D can file a "special exception" in writing, pointing out the particular pleading objected to, and stating with particularity the specific insufficiency. If the special exception is granted, P must amend his pleading or risk the claim being struck or the case dismissed.
What must a party who has made a traditional summary judgment motion prove?
The moving party has the burden of showing there is no genuine issue of material fact and that she is entitled to judgment as a matter of law.
What must a party who has made a no-evidence summary judgment motion prove?
The moving party must show that there is no proof of an essential element of a claim or defense on which an adverse party would have the burden of proof of trial.
EX: After the completion of discovery, Santiago files a Motion for Summary Judgment. The Motion is supported only by his affidavit, which concludes with the statement that "the facts contained herein are true and correct, based on information and belief." How and when should Appliances respond to the Motion for Summary Judgment and to Santiago's affidavit attached to the Motion? Explain fully.
Because Santiago's affidavit is "based on information and belief" rather than on personal knowledge, it is insufficient to show a lack of a genuine issue as to any material fact. Appliances must respond at least seven days before the date of the hearing on the motion by filing affidavits or a written response alleging insufficiency in Santiago's affidavit."
-If supporting and opposing affidavits are filed, they must be made on personal knowledge, set forth admissible facts, and show that the affiant is competent to testify to the matters in the affidavit. No oral testimony is taken at the hearing.
How/When to make a Batson Challenge?
Before the venire is dismissed, a party can challenge the opposing party's use of peremptory challenges to remove prospective jurors based solely on their race (a Batson challenge). If the challenging party makes a prima facie case, then the opposing party must give a race-neutral explanation for the challenges
If the court finds the explanation inadequate, it may, in its discretion, either assemble a new panel or reseat the improperly challenged jurors
P wants to exclude all use of his prior divorce from being mentioned in the trial against D. How to do so?
Before trial, Santiago's attorney should file a motion in limine requesting that the court exclude reference to the divorce due to risk of juror bias until the admissibility of that evidence can be determined. An evidentiary objection to relevance can also be made during trial
Note: A traditional motion in limine asks that the opposing party approach and notify the trial judge before mentioning certain matters in the presence of the jury; a non-traditional motion asks that the court rule on such matters before trial begins
While P is on the stand testifying, his attorney asks him the following question on direct examination:
"Isn't it true that your friend Alberto once told you that he had heard that D is known for treating its salesmen unfairly?"
What objection(s) should D's attorney make and how should the Court rule on the objection(s)?
D's attorney should object because the question is impermissibly leading on direct and calls for a hearsay answer not falling under an exception. The court should sustain D's attorney's objections.
While D's corporate representative is on the stand testifying, P's attorney asks him the following question on cross-examination:
"Isn't it true that D routinely disputes the amount of commissions it pays its salesmen six months after a salesman is hired?"
D's attorney objects to the question on relevancy grounds. How should P's attorney respond and how should the Court rule?
P's attorney should respond by stating that D's habit is admissible to prove conduct in conformity with the habit on a particular occasion, and that it is relevant because it makes a fact of consequence in the case more probable than it would be without the evidence. The court should overrule the objection.
Prior to trial, Ps ex-wife told D's investigator that P had told her in a conversation while they were married that D did not owe him any additional commissions, but that he was still going to demand payment of additional commissions. During the trial, D calls the ex-wife as a witness, seeking to elicit testimony about her conversation with P. What grounds, if any, does P's attorney have to object to the testimony? How should D's attorney respond? How should the Court rule?
P may object on the grounds that the privilege for confidential marital communication continues even when the marriage has ended and prohibits this testimony. Because there is an exception for communications made to enable or aid anyone to commit or plan to commit a crime or fraud, the court should probably overrule P's objection.
D tries to present statements made during mediation. How should P respond?
P should object to the testimony because information exchanged in mediation is generally confidential and inadmissible in Texas to prove or disprove the validity or amount of a disputed claim. The Court should sustain the objection.
Judge gives attorneys the proposed jury instructions. P finds a number of instructions and questions that are objectionable. How and when should P presents these objections to the court?
Prior to the jury charge, P may object to the charge in writing. He may also propose alternate instructions to the Court and opposing counsel within a reasonable time after the charge is given to the parties for examination. After opposing counsel responds to the proposed instructions, the Court may choose whether to use the proposed instructions.
After final arguments, the jury begins its deliberations. Two hours later, the jury sends a note to the Court stating that they are hopelessly deadlocked and want to go home. How should the Court respond to the note?
The judge can use a "dynamite charge" urging the jury to reach a unanimous verdict if at all possible. The judge cannot comment on the weight of the evidence, urge the jury to vote a particular way, or ask the foreperson for a numerical vote. The Court should not discharge the jury until it is altogether improbable that its members can reach a verdict.
the jury sends a note to the Court stating that it has reached a verdict. The jury comes back into the courtroom, at which time the Court reviews the verdict and notices that the jury has not answered all of the questions submitted to it by the Court. What should the Court do?
If the jury's verdict is defective or incomplete, the Court may direct it to be reformed, and the jurors will be required to further deliberate to fix the defects.
What is the name of motion that must be filed to challenge an action brought in an incorrect county?
Motion to Transfer Venue
When must a motion to transfer venue based on improper venue be filed?
Before or concurrently with any other pleading or motion in the case except for a special appearance
What are the counties in which permissive venue is proper when there is only 1 D?
First, a county where:
1. at least a substantial part of the events that gave rise to the action took place;
2. the D resided at the time of the event; or
3. the D has it principal place of business or office in Tx, if the D is not a natural person.
If none of these apply, the county where the P resided AT THE TIME OF EVENT
What are the counties in which permissive venue is proper if there are multiple D's?
In a suit in which the P has established proper venue against a D, the court also has venue of all the D's in all claims or actions arising out of the same transaction, occurrence, or series of transactions or occurrences.
If there is a defect apparent on the P's pleading, what action can the D take to compel the P to correct the deficiency?
File a "special exception" to the petition seeking a court order compelling the P to amend the pleading or reveal necessary information.
When a party serves a pleading by mail, what effect does that have on the time in which the other party has to reply to the pleading?
The other party has an add'l 3 days in which to respond
If a party learns of an affirmative defense after filing a pleading, what action must the party take to prevent waiver of the defense? When must the party take this action?
The party must file an amendment to the pleading by the deadline established by the pretrial scheduling order, or if none, more than 7 days prior to trial.
What action must a D take to reply to the substance of a P's petition? By when must the D take this action?
The D must file an answer by 10:00 AM on the first Monday after the expiration of 20 days from the date the defendant was served with process.
If a D objects to the PJ of the court over the D, what action must the D take, and by when?
The D must file a "special appearance" by a sworn motion before the deadline for filing an answer and as the first pleading of the case. The facts must be verified by affidavit.
A D wants to add a person as a party who may be liable to the P for all or part of the original P's claim against the D. What action must the D take?
D must serve a Third-Party Petition on the person
A D wants the court to consider the liability of a non-party for all or part of the original P's claim against the D but does not want to add that person as a party. What action must the D take?
The D must file a motion for leave to designate the person as a responsible third party (RTP)
Without leave of the court, when may a party amend a pleading?
If there is no scheduling order establishing amended pleadings deadline, an amendment to the pleadings may be made without leave of the court if filed more than 7 days prior to trial.
What limits apply to methods of discovery under Level 2 discovery, the default discovery control plan?
Each party is limited to 25 written interrogatories, excluding interrogators asking a party to identify or authenticate specific docs. Each side is limited to 50 hours to examine and cross-examine opposing parties, experts, and other party witnesses in oral deposition.
What are the 5 discovery methods available to a party?
1. requests for admission, disclosure, and production for inspection of documents or tangible things
2. Requests and motions for entry upon and examination of real property
3. Interrogatories to a party
4. Oral or Written Depositions
5. Motions for mental or physical examinations
A party seeks information form another party in electronic or magnetic form. How can a party obtain this info in this form?
The party must specifically request production of electronic or magnetic data and specify the form in which the requesting party wants it produced. The responding party must provide the info in elec/mag form if it is reasonably available to the responding party in its OCOB.
A party's attorney takes a W's statemetn as well as taking notes as the W makes the stmt. May another party obtain the stmt and the notes?
The requesting party may obtain the W's stmt without any special showing of need, but may not obtain the notes bc they are protected work product.
Can a party discover the opinions of a designated expert W of another party and if so by what methods?
Yes, a party may obtain the opinions of a testifying expert witness by:
1. request for disclosure; or
2. a deposition
When may a party who fails to amend a discovery response in a timely manner introduce at trial the undisclosed info or offer the testimony of a non-party W who was not previously identified?
When the court determines that:
1. there was good cause for the failure; or
2. the failure will not unfairly surprise or prejudice the other parties
Good cause for failure to respond will not be found when the failure to respond was intentional or the result of conscious indifference.
A party has responded to a discovery request by stating the info sought is privileged. What can the party seeking discovery do to obtain info regarding the privilege, and how must the other party respond?
The requesting party can serve a written request for a description of the withheld materials. Within 15 days of the service of that request, the party asserting the privilege must prepare a privilege log that describes the withheld information and asserts a specific privilege.
A party may request disclosure of ten categories of information without regard to the other party's objection or assertion of work product. What are those categories?
1. the correct names of the parties
2. name/address/numbers of potential parties and persons having knowledge of the relevant facts;
3. legal and factual grounds for the claim or defenses;
4. amount of and any method for calculating economic damages
5. indemnity or insurance agmts
6. settlement agmts
7. witness statements
8. medical records and bills, or in lieu thereof, an authorization permitting the disclosure by another person of such medical records and bills
9. name/address/numbers of any responsible third parties; and
10. discoverable info regarding a testifying expert
What objections may be made to questions posed at a deposition?
Leading, and to the form of questions
What objections may be made to answers given by a deponent at the deposition?
What relief may be available when a party seeks to depose a high-level official (e.g., CEO) of an organization, and how must the official or organization request such relief?
If the official lacks "unique or superior personal knowledge of discoverable information," the organization or official may move for a protective order or to quash the notice of deposition under the "APEX doctrine." The motion must be accompanied by an affidavit from the official denying such knowledge.
What action can a party take if another party refuses to respond to a discovery request?
The party, upon reasonable notice, can request a court order compelling discovery or imposing sanctions for failure to supply discovery.
If a party wants to prevent another party from referring to anticipated evidence in the presence of the jury until the admissibility of the evidence can be determined at trial, what motion must the party make?
Traditional Motion in Limine
If a party wants the court to rule on the admissibility of anticipated evidence immediately and exclude it from the trial, what motion must the party make?
a Non-Traditional Motion in Limine
What must a party who has made a traditional summary judgment motion prove?
the moving party has the burden of showing there is no genuine issue of material fact and that he is entitled to judgment as a matter of law
What must a party who has made a no-evidence summary judgment motion prove?
The moving party must show that there is no proof of an essential of a claim or defense on which an adverse party would have the burden of proof at trial.
By when must a party demand a jury trial, and what must accompany the demand?
A demand for a jury trial must be made not less than 30 days before the trial date and be accompanied by the appropriate statutory jury fee.
How many peremptory challenges is a side permitted in a district court action?
If a party challenges the constitutionality of another party's use of its peremptory challenges, what action must the party take?
The party must move for a Batson challenge before the jury is empaneled. The motion must establish a prima facie case that the other party has exercised peremptory challenges to exclude persons from the jury on the basis of gender or race
What does it mean to place witnesses "under the rule" or to request a "rule on witnesses?"
Invoking of "the rule" requires witnesses on both sides to be sworn in and then removed from the court room for any testimony other than their own. A "rule on witnesses" does not apply to parties, their spouses, or experts.
In a jury trial, when may a party move for a directed verdict and what is the standard for granting this motion?
The motion may be made by the defendant at the close of the plaintiff's case-in-chief and by either party at the close of the defendant's case-in-chief or the presentation of all evidence. A directed verdict can be granted only if there is no evidence of probative force to raise material questions of fact
What must a party do if the party disagrees with court's proposed charge to the jury?
If the party objects to something that is included in the charge improperly, the party must make an "objection"
If the party believes that a proposed charge omits an instruction that should be included, the party should make a "request for submission" and present the court with a substantially correct instruction
In a civil action brought in district court, how many jurors must agree on the verdict?
A verdict may be rendered in any civil action in district court by at least 10 members of an original jury of 12
In a jury trial at which the jury renders a verdict, what motion must a party make to have the court overturn the jury's verdict, and what is the standard for granting this motion?
The losing party may move for a Judgment Notwithstanding the Verdict (i.e., JNOV), and the court may grant this motion only if the evidence is legally insufficient to support the verdict.
What action may a party take to avoid a new trial when the party has been awarded excessive damages?
Any party in whose favor a judgment has been rendered may remit any part thereof.
By when must a party file a new trial motion?
A motion for new trial must be filed within 30 days after the judgment.
Request for Admission- legal effect and timing
Responding Party must serve a written response to the Request for Admission on the requesting party within 30 days after service of the request. If not, the request is deemed admitted by the party without the need for a court order.
in a suit involving physical or mental injury, D served P with a request for production asking for copies of all medical records relating to the treatment of the injuries P sustained in the collision. P objected to the request, claiming that the records contain personal and confidential information. How can D bring the matter to the attention of the Court and how should the Court rule?
D can file a motion to compel discovery if P refuses to answer D's request for production of medical records. The court should grant the motion and order P to comply with the request for production because in a suit involving physical or mental injury, a party must produce medical records even if the party claims they are privileged.
D knows the identity of the doctors who treated P for his injuries. How can D obtain the pertinent medical records directly from the treating doctors?
D may obtain medical records from P's treating physicians by compelling discovery through a court order or by serving a subpoena requesting production of the records. If the physicians testify as experts, D may request disclosure of documents provided to, reviewed by, or prepared by or for any expert in anticipation of testifying.
P's attorney served a notice to take D's deposition without first conferring with D's attorney. The notice provides that the deposition will be taken in the offices of P's attorney. D's attorney will be out of town on the date the deposition is to occur. Assuming that P's attorney is not willing to reschedule the deposition, what can D's attorney do to prevent the deposition from going forward as noticed?
David's attorney may file a motion for a protective order or a motion to quash the notice of deposition, and the Court will most likely order the deposition rescheduled until David's attorney can attend. If the motion is filed by the third business day after service of notice of deposition, it will stay the oral deposition until the motion can be determined.
After the completion of discovery, Express wants to be dismissed from the case, because it believes that, at the time of the collision, David was not acting within the course and scope of his employment with Express. How can Express raise the issue with the Court and what must Express show to obtain a dismissal?
Express can file a motion for summary judgment at least 21 days before the hearing date. Express has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law, and as a defendant, Express has the burden of proving all essential elements of this defense as a matter of law.
Assume David testified in his deposition that at the time of the collision he was still carrying out his daily duties for Express. How can Peter rely on and present this testimony to prevent Express from being dismissed from the case?
No later than seven days before the hearing on Express's motion, Peter may file a written response or affidavits based on personal knowledge that set forth admissible facts showing that a disputed material issue exists. At the hearing, Peter can present affidavits that support his argument that the Court should not grant summary judgment in Express's favor.
What to do when W can't make it to trial all of a sudden and you want to avoid trial until W can?
file a motion in writing and under oath for a continuance for want of witness testimony. The motion must show the testimony's materiality and content; a due diligence attempt to obtain the testimony; why testimony cannot be obtained on the scheduled day; that the testimony is now unavailable; and that the continuance is not for delay.
Assume the case proceeds to a jury trial and that David and Express are still defendants in the case. Assume that Express plans to contend during the trial that David was not acting within the course and scope of his employment at the time of the collision. How should the Court allocate peremptory strikes between Peter and the two Defendants?
Because each side in the case is entitled to six peremptory challenges, and because all three parties are antagonistic, Peter, David, and Express will each receive six peremptory challenges. Peter may file a motion to equalize the number of peremptory challenges so that no side is given an unfair advantage. The Court will determine a fair allocation.
Express'[s] insurance carrier had paid Peter's medical and hospital expenses related to the injuries sustained by Peter in the collision. During the trial, Peter's attorney offers into evidence a document showing those payments. What objection, if any, should Express'[s] attorney make? How should the Court rule?
Evidence that Express paid Peter's medical bills is not admissible to prove liability for his injuries, and Express's attorney should make an objection that the evidence is privileged and irrelevant. The Court should sustain the objection, but the Court may still admit any conduct or statements that accompanied the payment.
After deliberating, the jury returns a verdict in favor of Peter. However, David and Express believe that the amount the jury awarded for future medical expenses has no support in the evidence. What motion, if any, can David and Express file to raise the issue with the Court?
They may file a motion for a new trial or a motion to modify the judgment, and the Court may grant a request for a new trial if the damages are manifestly too small or too large. David and Express must file a motion for a new trial raising the issue of insufficient evidence or the issue of excessive damages before raising these issues on appeal.
Trey's original petition is very broad and makes general allegations of negligence against both defendants.
5. What pleading should the defendants file to require the plaintiff to re-plead his case with more definite and specific factual allegations? Explain fully
The defendants should file a special exception in writing, pointing out the particular pleading objected to and its specific insufficiency. If the exception is granted, Trey must amend his pleading to specifically plead the facts upon which he relies to support his negligence claim, or risk the claim being struck or the case being dismissed.
Trey requested a jury trial and paid a jury fee. Home and Ice requested a jury trial. Trey filed a motion to remove the case from the jury docket and place it on the non-jury docket. Home and Ice object to the motion.
13. How should the court rule?
The court should rule in favor of Home and Ice and keep the case on the jury docket because once Trey has made a jury demand, he cannot withdraw the demand over the defendants' objections.
Trey offers his own sworn answers to interrogatories to authenticate and prove his medical expenses and lost wages. Home objects to this evidence.
19. How should the court rule? Explain fully.
The court should rule in favor of Home because the answers to interrogatories may be used only against the responding party. Thus, Trey cannot use his own answers to interrogatories to authenticate his own evidence.
Wilda sues "Prime Pizza" as a named defendant. The shareholders of Prime Pizza, Inc. want to seek the protection of their corporate entity and avoid individual liability, if any. What pleading must Prime file in order to assert its corporate status and protect its shareholders from individual liability?
Certain issues, such as whether a party is incorporated, must be specifically raised in the answer to put the burden of proof on the plaintiff. Prime must file a special sworn denial asserting that it is incorporated and that Wilda sued Prime in its wrong capacity because she named "Prime Pizza" as the named defendant, not "Prime Pizza, Inc."
Prime believes that Big is responsible for the accident because Big's employees had a chance to pick up the sign or warn Wilda of the sign. Big is now in bankruptcy. What pleading must Prime file in order to secure a jury question on Big's liability, if any, for the accident?
Prime may file a motion for leave to designate Big as a responsible third party (RTP) because any person alleged to have contributed to causing in any way the harm for which recovery of damages is sought can be designated as a RTP. Alternatively, Prime could serve a third-party petition on Big to add Big as a third-party defendant.
Prime's store manager took several photographs immediately after Wilda fell. Wilda serves a request for production on Prime seeking production of the photographs. Prime asserts that the photographs are privileged and not subject to production under the investigatory privilege. How should the court rule on the assertion of privilege?
The court should overrule Prime's objection because, even if made in anticipation of litigaiton, a photograph that a party intends to introduce or offer into evidence is not work product and therefore not privileged.
Mercy serves interrogatories on Wilda seeking the names and addresses of any and all medical providers from whom she sought treatment for the ten years immediately preceding the accident. Wilda objects to the interrogatories on the basis of an invasion of her privacy, immateriality, and relevancy. How should the court rule?
A party can discover any matter that is not privileged and is relevant to the subject matter of the pending action, even if the information will be inadmissible at trial but may lead to the discovery of admissible evidence. Wilda's medical history is relevant and subject to discovery because the lawsuit involves a personal injury claim by Wilda.
Wilda's deposition reveals that she was talking on her cell phone when the accident occurred. What pleading should Mercy and Prime file in order to support a jury question on Wilda's responsibility, if any, for causing the accident?
Because contributory negligence must be affirmatively pled, Mercy and Prime should file amended answers at least seven days before trial to allege that Wilda was comparatively negligent in causing the accident because she was talking on her cell phone when the accident occurred.
Quick Clean was an independent contractor whose job was to clean the hospital cafeteria twice a day. In the ordinary course of its business, Quick Clean kept records of all of its activities. Wilda obtains copies of the business records of Quick Clean and a business records affidavit. Wilda advises the parties that she plans to use them as pre-trial and trial evidence. Mercy and Prime object on the basis that the "records" are hearsay as to them, although they could be used against Quick Clean. How should the court rule?
The Quick Clean records are admissible against all defendant under the business records exception to the hearsay rule because the records were kept in the ordinary course of Quick Clean's business, the making of the record was a regular practice of its business, and the record was made at or near the time of the incident by someone with knowledge.
During Mercy's investigation of the accident, it discovers a written statement given by Jane (a Prime manager) to the hospital, that she had also slipped on the sign and told the Prime maintenance department that the sign was a problem. Wilda seeks production of Jane's statement. Prime objects to the production of the statement because: (1) Jane was not authorized to give a statement and therefore it cannot be admissible against Prime; and (2) the statement is privileged because it was given during an internal investigation by Prime. How should the court rule?
The court should overrule Prime's objections because, even if she was not authorized to give a statement, Jane's statement was made with personal knowledge is relevant and material to Prime's notice of the dangerous condition. The statement does not fall under any privileges recognized in Texas simply because it was made in an internal investigation.
Prime was recently cited by the USDA for food safety violations. The citations, however, were subsequently dismissed. What pleading should Prime file to prevent these matters from being discussed during voir dire or opening statement?
Prime should file a motion in limine requesting a hearing on whether any matter relating to the food safety violations should be discussed at trial. Prime still must object if the matter arises during trial in order to preserve error for appeal.
On the first day of trial the weather is terrible, and very few potential jurors show up for jury duty. The trial court tells the lawyers that each side will receive four peremptory strikes in addition to their challenges for cause. Wilda objects to the court's decision to limit her to four peremptory strikes even though all parties are given the same number of peremptory strikes. Is the trial court authorized to limit the parties to an equal number of peremptory strikes under these circumstances?
Because each side in a case is entitled to six peremptory challenges in the district court and Wilda was only given four, Wilda could make a motion to equalize the number of strikes per side on the basis that she was unfairly disadvantaged as a result of the alignment of the litigants.
[Editor's Note: The term "side" refers to one or more litigants who have common interest in the matters with which the jury is concerned. If antagonistic parties are on the same side of a case, each party will be allowed its own peremptory challenges.]
Following the entry of a judgment by the trial court finding Mercy liable, Mercy files a motion for new trial. Assuming no other action is taken by any party, and the trial court does not rule on the motion for new trial, when will the judgment become final?
If a motion for new trial is not decided by written order within 75 days after judgment, it is deemed overruled by operation of law. If a motion is timely filed, the trial court can grant a new trial until 30 days after all filed motions are overruled. Therefore, this judgment will become final 105 days after judgment (75 plus 30 days).
Anticipating that an objection to venue may be granted, Paul contemplates an appeal of an adverse venue ruling. Is an interlocutory appeal authorized from an order granting a motion to transfer venue?
Paul is not entitled to an interlocutory appeal because the venue determination is not a final judgment and no statutory exception would allow an interlocutory appeal, but Paul could file a motion for re-hearing if his motion to transfer venue was based on mandatory venue or the grounds that an impartial trial is not attainable at the current venue.
If the trial court rules incorrectly on the motion to transfer venue, what effect, if any, will such erroneous ruling have on appeal regarding any final judgment?
An erroneous venue ruling on a motion to transfer venue is reversible error. The judgment will be reversed and remanded.
The police report indicates that Dan was unable to show proof of financial responsibility at the scene of the collision. Name two types of written discovery available to Paul to determine if Dan has insurance and, if so, the extent of his policy limits?
Paul could determine if Dan has insurance by making a simple request for disclosure of an insurance agreement, by serving a written interrogatory on Dan to determine whether Dan has an insurance agreement and the extent of his policy limits, or by a request for production of the insurance agreement.
Paul, Dan, and Fred were all deposed. Following the transcription and delivery of the depositions, Paul served a Request for Admissions on Dan. Dan objected to the Request for Admissions on the basis that the matters addressed in the Request for Admissions could have been raised and addressed in the deposition of Dan and therefore have been waived by Paul. How should the court rule on Dan's objection?
The court should overrule Dan's objection to Paul's request for admissions because there is no reason Paul cannot serve a request for admission on Dan. Unless the request was untimely, Dan must respond to the request for admission within 30 days or the request will be considered a deemed admission.
During the investigation of the accident by the police, Fred tells the police that the wreck was his fault because he was going the wrong way on a one way street and Dan could not have seen him coming. Dan offers this evidence at trial through the investigating police officer. Fred objects and asserts that his statement is privileged and not admissible, because he made the statement to the police during an official investigation. How should the court rule on the objection?
The court should overrule Fred's objection because a statement made to the police does not fall under any privilege recognized by the Texas Rules of Evidence. Instead, Fred's statement to the police officer was a statement against interest and is admissible hearsay under TRE 803, even if Fred is not unavailable.
At trial, Paul proffered unauthenticated copies of his medical records and medical bills to support his claim for damages. Fred and Dan objected to the proffer on the basis of hearsay. Paul responded that these copies were produced to all parties in his discovery responses and that all parties had notice of the proffered evidence. Further, Paul noted that no prior objection to the proffered evidence had been urged. How should the court rule on the hearsay objections of Fred and Dan?
All tangible evidence, even evidence exchanged during discovery without objection, must be authenticated. Here, the court should sustain the objections because the copies of Paul's medical records and bills were not authenticated and cannot satisfy the business record hearsay exception.
The jury awarded $20,000 to Paul for his past medical expenses. The parties had previously stipulated that Paul's health insurance carrier paid $12,000 to Paul's health care providers and that as a result all of Paul's remaining medical expenses were completely discharged. Paul filed a motion for a judgment for $20,000 for his past medical expenses. How should the court rule?
The court should deny Paul's motion for judgment in the amount of $20,000 because the parties have already stipulated that Paul's insurance carrier had paid $12,000 and his remaining expenses were completely discharged.
1. What must Pat allege in his lawsuit and who must Pat serve in order to acquire subject matter jurisdiction over Plus?
an oklahoma company
To get subject matter jurisdiction over Plus, Pat must allege that Plus is a foreign corporation doing business in Texas with no principal place of business and no registered agent in Texas. In order to properly serve Plus, Pat must serve Plus through the Texas Secretary of State under the Texas long-arm statute.
Green and Plus gathered evidence that Pat's neighbor, Tom, actually sprayed Clean Engine onto the gas grill. What pleading should Green and Plus file to support a jury question on the issue of Tom's negligence.
Green and Plus should file a motion to designate Tom as a responsible third party.
[CIVPRO.III.B.7.] [Editor's Note: A defendant, acting as a third-party plaintiff, may join a third-party defendant by serving a third-party petition/complaint on that person. This would allow the jury to actually find the third party liable for damages as a party to the case. A responsible third-party designation allows the liability of the responsible third party (the "RTP") to be considered by the jury, but does not require actual joinder of or jurisdiction over the third party. If Green and Plus are only trying to "support a jury question on the issue of Tom's negligence" rather than actually attain an enforceable judgment against Tom, a motion for an RTP designation is the more appropriate motion.]
At a court-ordered mediation, Green's store manager told the mediator that Green will not contest liability for the purposes of the mediation. Pat subpoenas the mediator to testify at trial. Green objects to any testimony from the mediator. How should the Court rule on Green's objection?
The court should sustain the objection because information exchanged in mediation is generally confidential and inadmissible in Texas, unless it is used to prove bias or prejudice of a witness, to negate a claim of undue delay, or to prove obstruction of a criminal investigation or prosecution. Thus, this evidence is privileged and inadmissible.
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